Delardas v. County Court of Monongalia County, 13156

• Decision Date: 23 March 1972
• Docket Number: No. 13156,13156
• Citation: 155 W.Va. 776,186 S.E.2d 847
• Court: West Virginia Supreme Court
• Parties: William DELARDAS, etc. v. The COUNTY COURT OF MONONGALIA COUNTY, West Virginia, et al.

Page 847

186 S.E.2d 847

155 W.Va. 776

William DELARDAS, etc. v. The COUNTY COURT OF MONONGALIA COUNTY, West Virginia, et al.

No. 13156.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1972.

Decided Feb. 22, 1972.

Rehearing Denied March 23, 1972.

Syllabus by the Court

1. 'A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.' Point 6 Syllabus, State of West Virginia v. Heston, 137 W.Va. 375 (71 S.E.2d 481).

2. The portions of Chapter 23, Acts of the Legislature, Regular Session, 1971, as partially amended by Chapter 13, Acts of the Legislature, First Extraordinary Session, 1971, which amended and reenacted Sections 1, 3, 4, 5 and 6 of Article 7 of Chapter 7 of Code, 1931, as previously amended, and the portions of the said Chapter 23, Acts of the Legislature, Regular Session, 1971, which expressly repealed or deleted and omitted all previously existing statutory provisions which had specified and fixed salaries of county commissioners, sheriffs, county clerks, circuit clerks, joint clerks of county courts and circuit courts, assessors and prosecuting attorneys, are violative of the provisions of Section 38, of Article VI of the Constitution of West Virginia and they are therefore invalid.

3. Mandamus is a proper proceeding by which to compel a public officer to perform a mandatory, nondiscretionary legal duty.

William Delardas, pro se.

Joseph A. Laurita, Jr., Pros. Atty., Monongalia County, Morgantown, for respondent.

Henry C. Bias, Jr., Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Leo Catsonis, Charleston, W.Va., amicus curiae.

CALHOUN, President:

This case involves a proceeding in mandamus instituted in this Court by William Delardas in his own right as a citizen, voter and taxpayer of Monongalia County, and also on behalf of all other citizens, voters and taxpayers of that county who are similarly situated, against the County Court of Monongalia County and John Patrick Ball, Melvin B. Rexroad and Joseph E. Kun, the three county commissioners who constitute the county court. These three county commissioners may be referred to hereafter in this opinion as the respondents.

The petitioner, William Delardas, alleged in his mandamus petition that the three county commissioners, acting in their official capacities, raised their several official salaries in 1971 in violation of the provisions of Section 38 of Article VI of the Constitution of West Virginia. The portion of that constitutional provision which is most pertinent to this case is the following language: 'Nor shall the salary of any public officer be increased or diminished during his term of office, * * *.' This allegation in the mandamus petition raises the primary and basic question presented for decision. The case does not involve any material issue of disputed fact.

The case was submitted for decision upon the mandamus petition; upon the answer of the respondents; upon the brief and oral argument of William Delardas, who, though not a lawyer, was permitted to appear before the Court in his own proper person; upon the brief and oral argument of counsel for the respondents; and upon various briefs amici curiae, one being in support of the prayer of the mandamus petition and all others except one being in opposition thereto. The exception referred to immediately above is a brief amicus curiae filed in behalf of the State Tax Commissioner. It embodies a helpful discussion of all aspects of the case and of the questions presented for decision. To some extent at least, this brief seeks guidance for the benefit of the State Tax Commissioner and the various county officials of the state in the interpretation and application of pertinent statutes to which specific reference will be made hereafter in this opinion.

The prayer of the mandamus petition is as follows: (1) that the respondents be required to cease 'further collections of salary increases illegally obtained'; (2) that the respondents be required to return 'to the proper authority' all amounts illegally received by them since July 1, 1971; and (3) that the County Court of Monongalia County and the respondent county commissioners 'take immediate steps to remove $4,000 from the budget item for county commissioner salaries and restore the item to $15,000.'

The petitioner, as a citizen and a taxpayer of Monongalia County, suing in his own behalf and in behalf of all other taxpayers of that county, has a right to maintain the mandamus proceeding in order to test the constitutionality of the action of the respondents in increasing their official salaries. Spilman v. City of Parkersburg, 35 W.Va. 605, pt. 3 syl., 14 S.E. 279; 16 Am.Jur.2d, Constitutional Law, Section 127, page 323; 16 C.J.S. Constitutional Law § 80, page 247.

The mandamus petition was filed in this Court on November 11, 1971. The respondents at that time were occupying their several official positions as county commissioners pursuant to election for six-year terms of office which had commenced as follows: Melvin B. Rexroad, January 1, 1967; John Patrick Ball, January 1, 1969; and Joseph E. Kun, January 1, 1971. Prior to July 1, 1971, each of the three respondents was paid a monthly salary of $400 in accordance with the provisions of Code, 1931, 7--1--5(33), as amended. During the 1971 calendar year and prior to July 1 of that year, the respondent county commissioners, acting as the County Court of Monongalia County, undertook to increase their respective salaries with the purpose of causing the increases to become effective July 1, and consequently they were paid salaries at a monthly rate of $500 each for the months of July, August, September and October, 1971. Presumably they have since continued to be paid monthly salaries at the increased rate of $500 a month.

While the increase in salaries appears on its face to be clearly violative of the constitutional inhibition in question, the respondents undertake in this case to justify their actions in increasing their several salaries by their reliance upon the provisions of Chapter 23, Acts of the Legislature, Regular Session, 1971, which was enacted on March 13, 1971, and amended slightly by the enactment on April 28, 1971, of Chapter 13, Acts of the Legislature, First Extraordinary Session, 1971. Both enactments were made effective July 1, 1971. The statute thus enacted and amended will be referred to hereafter in this opinion as the Act or as the 1971 Act. Its purpose, generally speaking, was to classify all the counties of the state in seven categories based upon the total assessed valuations of all classes of property in the several counties; to fix maximum and minimum salaries to be paid to county officials of counties in each category; and to authorize the county court of each county to fix the salaries of the county officials of the county at an amount no greater than the maximum and no less than the minimum amounts specified by the Act. On the basis of the assessed valuation of all classes of property, Monongalia County is in Class II under the provisions of the Act. The Act provides that, in Class II counties, the annual salaries or compensation of county commissioners shall be fixed by the county courts of such counties at a minimum of $6,000 and a maximum of $9,000.

In Harbert v. The County Court of Harrison County, 129 W.Va. 54, 39 S.E.2d 177, a case in which the Court considered and applied the constitutional provision which is involved in the instant case, the Court stated (129 W.Va. 54, 61, 39 S.E.2d 177, 184):

'* * * In express terms, and in language too clear to admit of speculation or interpretation, the people of this State, in the exercise of their sovereign power, have said: 'Nor shall the salary of any public officer be increased or diminished during his term of office.' Though these words of ordinary import and meaning are perhaps directed to the Legislature because placed in the article dealing with that department of government, they are comprehensive and they are not so limited in their application. They apply to all the agencies of government.' (Italics supplied.)

Inasmuch as the defense of the respondents in this case is based solely on the provisions of the 1971 Act, we are necessarily required in this case to determine whether the statutory enactment in question is violative of the portion of Section 38 of Article VI of the Constitution of West Virginia which clearly provides that the salary of any public officer shall not be increased or diminished during his term of office. The purpose of this constitutional provision, as stated in Harbert v. The County Court of Harrison County, 129 W.Va. 54, 62--63, 39 S.E.2d 177, 185, is as follows:

'* * * The command of the Constitution that the salary of no public officer shall be increased or diminished during his term of office, is a wise and salutary mandate. Its purpose is to establish definiteness and certainty in the salaries of public officers and to protect and safeguard the independence, the security, and the efficiency of the occupant of every public office. It assures the people that those who serve them as public officers shall give their services during their terms for the amount of compensation for which they were willing to serve and have been selected, and for which they were expected by the people to serve at the time of their entrance upon the performance of their duties. It prevents attacks upon officials by whose who may be possessed, at any time, of the means and the will to influence or control their course of conduct...